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167 Cards in this Set
- Front
- Back
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NY workers compensation: What is an exclusive remedy against employer and co-workers?
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a statutory insurance scheme purchased by the employer
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NY WORKERS COMPENSATION: How does this apply to co-workers?
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can still sue them for intentional torts or if they acted outside the scope of employment
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NY WORKERS COMPENSATION: How does this apply to third parties?
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Can sue 3rd parties who contributed to injury
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NY WORKERS COMPENSATION:
Under what circumstances can the thirty party sued seek contribution from the employer? |
can't seek contribution from employer unless the injuries are grave
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NY WORKERS COMPENSATION:
What are the rules for third parties and non-economic damages? |
if not grave, them employer's % fault doesn't factor in at al when assessing % responsibility of the remaining parties (e.g., two remaining parties will be 50% responsible)
If grave, third party will be liable for employer's share of the responsibility (E.g., party A is 30% responsible, but will also be required to pay for the 20% responsibility of the employer) |
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NY WORKERS COMPENSATION:
What are exceptions from scheme (you can sue in tort)? |
1) independent contractors (bring own tools, supervise own work, work in on limited projects for limited times, tax status)
2) teachers 3) white-collar employees of charitable organizations 4) part-time domestic and household employees 5) clergy |
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NY WORKERS COMPENSATION:
Covers any on-the-job injury EXCEPT: |
1) injury due solely to employee's own intoxication
2) intentionally-caused injuries on yourself 3) intentional injuries by a worker or co-worker 4) stuff occurring in VOLUNTARY off-duty athletic activity |
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NY WORKERS COMPENSATION:
What else does it cover? |
1) injuries on the job associated with illegal conduct
2) horseplay at work UNLESS it's outrageous AND happened after time of employment ended |
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NEW YORK NO FAULT INSURANCE:
What is minimum coverage? |
must buy min. coverage of $50,000. Insurance is portable and goes with your car outside of NY
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NEW YORK NO FAULT INSURANCE
For what type of injuries can you claim benefits? |
ONLY personal injuries
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NEW YORK NO FAULT INSURANCE
Claiming benefits: what are claimants under your policy? |
1) guest drivers of your car with permission
2) passengers in your car driven by you or authorized driver 3) pedestrians hit by your car |
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NEW YORK NO FAULT INSURANCE
Claiming benefits: What are ineligible to claim? |
1) Drunk drivers
2) drag racers 3) car thieves 4) fleeing felons |
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NEW YORK NO FAULT INSURANCE
What must you show to get access to tort system (2 categories...either) |
Demonstrate ANNUAL loss in excess of $50,000 OR serious injury
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NEW YORK NO FAULT INSURANCE
Access to tort system: demonstrating an annual loss in excess of $50,000 includes: |
medical expenses PLUS 80% of lost earnings up to $2,000/month ($24k/year) PLUS misc. expenses of $25/day ($9,125/year)
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NEW YORK NO FAULT INSURANCE
Access to tort system: Demonstrating serious injury includes: |
death, dismemberment, significant disfigurement, serious fracture or permanent loss/limitation of use of a bodily organ or function
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NEW YORK PERSONAL PROPERTY
Describe the two types of property |
1) ABANDONED: surrender possession (physical) AND intend to surrender title/control (mental)
2) LOST: accidentally part with possession but have no intention of surrendering title. The true owner has superior claim to recover property NO MATTER WHAT!!! |
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NEW YORK PERSONAL PROPERTY:
What must the finder of lost property do if the value is <$20 and if the value is >$20? |
1) LESS THAN $20: must make reasonable effort to find the owner for 1 year. Afterwards, the finder gets to keep it!
2) MORE THAN $20: must turn it into the police! They hold it for a period of time dependeing on the value (Max is 3 years for <$5,000). After that period, the finder gets it back from the police |
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NEW YORK PERSONAL PROPERTY
GIFTS: What are the inter-vivos requirements? |
1) Donative intent: the donor meant to part TITLE rather than merely possession
2) Acceptance by donnee: Presumed by silence--need to speak to reject 3) Valid delivery: the actual piece of property OR its representation must be handed over. Consists of special cases, the use of agents, and repersentations |
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NEW YORK PERSONAL PROPERTY
GIFTS (inter-vivos requirements): What are special cases to valid delivery? |
1) First party checks: not delievered until cashed AND clears
2) Third party checks: delivered when paper turned over, such as when grandma endorses over a chek someone else wrote to her |
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NEW YORK PERSONAL PROPERTY
GIFTS (inter-vivos requirements) HOw are agents used in valid delivery? |
agents for the two sides are in teh shoes of the principals
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NEW YORK PERSONAL PROPERTY
Gifts (inter-vivos requirements): How are representatives used in valid delivery? |
in lieu of physical delivery, can provide a key or a title certificate to a car
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NEW YORK PERSONAL PROPERTY
What are gifts causa mortis ? |
CONDITIONAL gifts made in contemplation of imminent death
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NEW YORK PERSONAL PROPERTY
What are the requirements of gifts causa mortis? |
1) imminent risk of death to donor
2)risk must be likely to ocur AND 3) donor must be aware of the risk |
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NEW YORK PERSONAL PROPERTY
Gifts causa mortis: How are they conditional? |
if the recipient dies first, no gift.If the donor recovers, no gift
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NEW YORK PERSONAL PROPERTY
What are Liens? |
the right to CONTINUE PROCESSING someone else's personal property if you improved/enhanced it or if you rendered services in connection with the property UNTIL the property owner pays you
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NEW YORK PERSONAL PROPERTY
What is LIENS? |
the right to continue possessing someone else's personal property if you improved/enhanced it or if you rendered services in connection with the property UNTIL the property owner pays you
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NEW YORK PERSONAL PROPERTY
What are the elements of liens? |
1) debt
2) debtor has title to physical property AND 3) creditor has posessions of the property AND has improved/enhanced the property in some way examples:car repair shops and dry cleaners |
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NEW YORK PERSONAL PROPERTY
What are types of liens? |
1) Special lien: right to retain SPECIFIC propertyt o secure a specific charge REGARDING that property; release of items waives the lien/general balance due to the extent released. Can only hold the property they worked on
2) GENERAL LIEN: right to retain ANY property they have until a general balance is paid. RElease of some items doesn't affect general balance (Example: self-storage facility can give you one item without releasing the lien on the other stuff) |
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NEW YORK PERSONAL PROPERTY
What is bailment? |
parting with possession but not title. Bailor = the owner
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NEW YORK PERSONAL PROPERTY
What are black box bailments? |
If bailment for car, then the stuff in the car is under bailment IF it's stuff that would normally e found in the runk okf the car. Example: bank is bailee of everything in safe deposit box
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NEW YORK PERSONAL PROPERTY
What is the implication forbailment? |
must take reaonaable steps to safeguard the bailment object while you have it
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NEW YORK PERSONAL PROPERTY
How does bailment apply to coats (fee vs. no fee)? |
a) if no fee is charged, max liabilty = $200
b) if fee is charged AND you declare a value over $200, max liability = $300. If you prove negligence here though and have a receipt, you can recover full value |
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NEW YORK PERSONAL PROPERTY
How does bailment apply to strict liability situations? |
entitles recover of ENTIRE value
a) bailee used item outside scope of the bailment b) if you give the item back to the wrong person UNLESS they presented a claim check |
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INTENTIONAL TORTS: PHYSICAL
What are the general principles of physical torts? |
1) Hypersensitive Plaintiff is ignored
2) Incapacity isn't a defense (allowing children to be sued) 3) Transferred intent: intent to commit any intentional tort will make you liable if you commit any other tort against someone else 4) Intent: must always INTEND the forbidden consequence/result or be substantially certain that it will occur. Is part of prima facie case. Intentional infliction of emotinal distress is the ONLY one that allows recklessness 5) Causation: must at least be a substantial factor in the result |
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INTENTIONAL TORTS: PHYSICAL
What is the only physical tort that allows recklessness? |
intentional inflection of emotional distress
example: not falseimprisonment if done by accident |
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INTENTIONAL TORTS: PHYSICAL
What is battery? |
a) harmful or offensive contactt. Can be done by the defendant's physical contact or other method (such as setting a trap)
b) With P's Person: including anything P is connected to, holding, or touching (such as bag or horse being ridden). Time lag is ok, such as poisoned peanut butter which later makes contact with P's mouth |
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INTENTIONAL TORTS: PHYSICAL
What is assault? |
a) place is reasonable"knowledge" (apprehension). Analyze P's knowledge--if gun is loaded, he can reasonably believe it is unless he actually knows otherwise
b) of an IMMEDIATE battery through overt physical acts or gestures i) physical: words alone lack immediacy but can negate the physical conduct (subjective or conditional words) ii) Immediate: scheduling fight for 6 hours later isn't assault |
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INTENTIONAL TORTS: PHYSICAL
What is false imprisonment? |
1) Act of restraint: a) physical acts; b) threats; c) omissions of assistance
2) Confining P to a bounded area that's limited in all directions by threat or physical barrier 3) P knows of confinement OR is injured |
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INTENTIONAL TORTS: PHYSICAL---False imprisonment
When are threats a sufficient act of restraint? |
if they operate on a person of ordinary sensitivity
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INTENTIONAL TORTS: PHYSICAL - False imprisonment
When are omissions of assistance an act of restraint? |
if there's a duty to facilitate P's movement, such as if an airline crew didn't help a wheelchair-bound passenger off the plane
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INTENTIONAL TORTS: PHYSICAL TORTS
False imprisonment: what is an exception to confinement in a "bounded" area? |
If there's an ESCAPE
It's not bounded IF: 1) there's a reasonable means of escape that... 2) P could reasonably discover **it's not a reasonable escep if it is DANGEROUS, DISGUSTING, or HUMILIATING |
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INTENTIONAL TORTS: PHYSICAL TORTS
False Imprisonment - what is the shopkeeper privilege of affirmative defense? |
Can hold someone if you reasonably believe they stole something from you
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INTENTIONAL TORTS: PHYSICAL TORTS
*Intentional infliction of emotional distress: What type of INTENT is allowed? |
RECKLESS
Intentional infliction of emotional distress is the only intentional tort that allows recklessness (utter and abject disregard of P's interests) |
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INTENTIONAL TORTS: PHYSICAL TORTS
What is the only intentional tort that allows recklessness? |
Intentional infliction of emotional distress
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INTENTIONAL TORTS: PHYSICAL TORTS
What is outrageous conduct? |
that which exceeds all bounds of decency tolerated in a civilized SOCIETY
1) mere insults are never outrageous 2) Pus factors: stuff that isn't normally outrageous may become so if its repetitive conduct, common carrier/innkeeper, fragile class of people, targeting known sensitivities of a person |
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INTENTIONAL TORTS: PHYSICAL
A trespass to land requires what intent? |
got to challenged geographical spot on PURPOSE
No need to know you crosseda property line |
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INTENTIONAL TORTS: PHYSICAL
What is an act of physical invasion (trespass to land)? |
1) bodily entry
OR 2) propelling a TANGIBLE item onto the land |
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INTENTIONAL TORTS: PHYSICAL
What is an element to trespass to chattels and conversion? |
Interference with property
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INTENTIONAL TORTS: PHYSICAL
Trespass to chattels and conversion ----what constitutes property and what is a special property rule in new york? |
Property is everything TANGIBLEexcept for land house and fixtures.
In NY, theft of electronic records is conversion---previously only applied to tangible property |
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INTENTIONAL TORTS: PHYSICAL
Trespass to chattels and conversion---------what does INTERFERENCE mean? |
Deliberately damaging or takingit
It's an interference to intentionally take something even if you thought it was yours. |
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INTENTIONAL TORTS: PHYSICAL
What the two types of trespass to chattels and conversion? What does each type mean? |
Trespass: if degree of interferenceis small you get cost of repeair or rental value
Conversion: if major interference recover full value of asset |
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INTENTIONAL TORTS: PHYSICAL
How does recovering property relate to trespass to chattels and conversion? |
it is a privilege to trespass to recoverv via reasonable means your property from another's land. Not liability for damage to the wrongdoer's property
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INTENTIONAL TORTS: PHYSICAL
CONSENT - what is required to consent? |
Legal capacity. Children CAN consent to AGE-APPROPRIATE onduct
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INTENTIONAL TORTS: PHYSICAL
Affirmative defenses --- What are types of consent? |
Express Consent
Implied Consent |
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INTENTIONAL TORTS: PHYSICAL
Affirmative defenses --- What is express consent |
explicit words (oral or written so long as not obtained through fraud or duress
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INTENTIONAL TORTS: PHYSICAL
Consent -- What is implied consent |
By custom
Via reasonable interpretation of P's OBJECTIVE conduct By law |
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INTENTIONAL TORTS: PHYSICAL
Affirmative defenses What is the scope of consent? |
exceed consent and you're defenseless
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INTENTIONAL TORTS: PHYSICAL
Self-defense ---- What three elements play a role in identifying self-defense? |
a) timing
b) reasonable belief c) proportionality |
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INTENTIONAL TORTS: PHYSICAL
Self-defense -- What is the TIMING criteria? |
tort must be in progress or imminent. NO REVENGE ALLOWED
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INTENTIONAL TORTS: PHYSICAL
Self defense--- What does REASONABLE BELIEF mean? |
that tort is being committed against him his propert or another person. Reasonable mistake is therefore okay.
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PHYSICAL TORTS
Self-defense --- What does PROPORTIONALITY mean? |
the amount of force used must be proportional to the threat. Includes use of mechanical devices (like setting a trap)
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PHYSICAL TORTS
Self defense --- When is deadly force allowed in general? (not including NY) |
Allowed ONLY in response to life-threatening actions of another and NEVER in defense of property
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PHYSICAL TORTS
Self-defense--- What is the NY RULE for using deadly force? |
must retreat before using deadly fore if safely possible unless you're in your own home or you are a police officer
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PHYSICAL TORTS
Necessity --- How powerful is necessity compared to other affirmative defenses? |
It trumps everything including self defense
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PHYSICAL TORTS
Necessity --- What is its coverage? |
Only a defense to property torts (trespass to land / chattels conversion) when threatened in jury is more serious than the invasion of property or land necessary to avoid injury
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PHYSICAL TORTS
Necessity-- What is public necessity? |
Interference with property in an emergency to protect the community as a whole or a significant group of people
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PHYSICAL TORTS
Necessity--- What is private necessity? |
Same idea as public necessity but only to protect yourself or your interests
a) must pay for harm actually done b) never liable for other damages c) can remain on land for duration of emergency and can't be expelled |
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INTENTIONAL TORTS: DEFAMATION
Prima Facie Case: what is it? |
Defamatory statement (false + reputational harm) + published to another + damages
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INTENTIONAL TORTS: DEFAMATION
Prima Facie Case---- What is a defamatory statement? |
1) adversely affects the reputation of a
2) specifically identified 3) living plaintiff |
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INTENTIONAL TORTS: DEFAMATION
What is reputational harm? |
must be an allegatoin of FACT that discusses a CHARACTER trait
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INTENTIONAL TORTS: DEFAMATION
How can opinions cause reputatoinal harm? |
would a reasonable person cocnlude tthat the statementimplicitly conveys facts?
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INTENTIONAL TORTS: DEFAMATION
In the description of defamation, what does it mean that the defamatory statement is published/communicated to at least one person even by negligence? |
the INTENT here is only to publish it not to defame
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INTENTIONAL TORTS: DEFAMATION
What does it mean that it causes damages MAYBE as related to libel? (what changes in NY |
Libel: written / permanently embodied defamation -- damages are presumed
But in NEW YORK: if defamatory content isn't on there on its face look to extrinsic evidence (libel per quod).Requires proof of damages EXCEPT IF falls within one of hte slander per se categories |
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INTENTIONAL TORTS: DEFAMATION
What does it mean that it causes damages MAYBE as related to SLANDER? (what changes in NY?) |
if per se damages are presumed for prima facie case. Otherwise must show damages
In general per se categories means are bout P's business or profession whetherP committed a crime involving moral turpitude and whether P has a loathsome disease. IN NEW YORK: slander also includes saying someone is gay |
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INTENTIONAL TORTS: DEFAMATION
Defenses--- What are defenses against defamation? |
1) consent
2) truth 3) absolute privilege 4) qualified privlege |
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INTENTIONAL TORTS: DEFAMATION
Defenses --- What is absolute privilege? |
It's granted based on who the defendant is
a) communications made ONLY to spouse can't be basis of a lawsui b) officers of government acting within scope of official duties (all statements made in open court) |
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INTENTIONAL TORTS: DEFAMATION
Defenses -- What is qualified privilee? |
Dependson context of speech
a) Privilege: Public interest in candor 2)Limitations: must have a reasonable belief in accuracy of info AND the info confined to purpose that led to creation of qualified privilege in the first place |
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INTENTIONAL TORTS: DEFAMATION
What is a matter of public concern? |
When it's of general and genuine public concernsuchas when publicfigure sareimplicated
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INTENTIONAL TORTS: DEFAMATION
Matters of public concern --- What are additional elements for the plaintiff to prove? |
1) falsity of statement
2) fault depending on type of plaintiff (public or private) |
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INTENTIONAL TORTS: PRIVACY
Prima facie torts---- What is the only privacy tort recognized in NEW YORK? |
Tort of appropriation
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INTENTIONAL TORTS: PRIVACY
What are the prima facie privacy torts? |
1) Appropriation
2) Intrusion 3) false light 4) disclosure |
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INTENTIONAL TORTS: PRIVACY
Define appropriation and its exception. |
Use of P's name or image for commercial purposes
Exception: newsworthy uses |
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INTENTIONAL TORTS: PRIVACY
Define intrusion |
1) invasion of P's seclusion in a way objectionable to average person
2) at a place where there's an expectation of privacy (peeping tom) |
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INTENTIONAL TORTS: PRIVACY
What is false light? What is its strict liability? |
1) widespread dissemination of a
2)FALSEHOOD about P 3) that would be objectionable to the average person strict liability: good faith belief in falsity of info won't defeat the claim |
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INTENTIONAL TORTS: PRIVACY
How is false light distinct from defamation? |
doesn't have to relate to a character trait
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INTENTIONAL TORTS: PRIVACY
What is disclosure and what is its exception? |
1) widespread disseminationof
2) confidential info about P 3) that would be objectionable to an average person --must actually be confidential Exception: investigative reporting dependent on diging stuff up |
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INTENTIONAL TORTS: PRIVACY
What are defenses to the privacy tort? |
1) consent
2) absolute and qualified privilges (applicable only for false light and disclosure) |
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INTENTIONAL TORTS: ECONOMIC
What are the elements of the NEW YORK prima facie tort? |
1) intent to do harm
2) resulting in actual pecuniary harm |
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INTENTIONAL TORTS: ECONOMIC
How is the NEW YORK prima facie tort a backup tort only? |
inapplicable if a traditional tort could've been used but for statute of limitations
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INTENTIONAL TORTS: ECONOMIC
What are the elements of fraud? |
1) Factual misrepresentation to P in connection with business transaction
2) knowledge of falsity of statement 3) intention to induceu P's reliance 4) P justifiably relieson it 5) economic damages |
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INTENTIONAL TORTS: ECONOMIC
What are the elements of inducing a breach of contract between D and 3rd party? |
1) ontract not terminable at will
2) D has knowledge of contract 3) persuasion to 3rd party to abandon contract 4) abandoning of contract |
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INTENTIONAL TORTS: ECONOMIC
What is the special relationship defense to inducing breach of contract between D and 3rd party? |
If special relationship betwn D and 3rd party then no problem
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INTENTIONAL TORTS: ECONOMIC
What is the theft of trade secrets? |
1) possession of valid trade secret that is: a) info providing business advantage; b) not generally known and c) owner takes ongoing and reasonable efforts to keep it a secret
2) D gets secret through improper means either through traitorous insiders or industrial spy |
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NEGLIGENCE
What must there be? |
Duty + breach + causation + damages
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NEGLIGENCE: DUTY
To whom is this duty? |
Foreseeable victims ONLY, with the exeption of rescuers because their always forseeable.
In NEW YORK the duty is also to Fetuses---normally not in generally because they are unforseeable (hidden) |
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NEGLIGENCE: DUTY
Foreseeable victims: What does the zone of danger mean? |
only owe duty to victims relatively nearby
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NEGLIGENCE: DUTY
Discuss the NY duty to fetuses (impact to mother misdiagnosed birth defect and botched sterilization) |
a) impact to mother: can sue ONLY IF CHILD IS BORN ALIVE
b) birht defect: had she known mother would've terminated pregnancy. Can only recover for extra costs of raising child and not recovery for emotional distress c) no recovery for boched sterilization |
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NEGLIGENCE: STANDARD OF CARE OWED
What is the standard objective test? Describe its rule. |
Rule: amount of caution/effort would've been exercised by reasonably prudent person in similar circumstances
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NEGLIGENCE: STANDARD OF CARE OWED
What is the implication of the standard objective test? |
Ignores individual mental attributes if it's your first time doing something etc.
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NEGLIGENCE: STANDARD OF CARE OWED
What are exceptions? |
Superior knowledge: built in to reasonable standard of prudence
physical characteristics: standard would be reasonably prudent (blind person etc.) |
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NEGLIGENCE: STANDARD OF CARE OWED
What is the implication of negligence per se? |
a criminal statue sets the statard of care owed ONLY IF 1) P is a member of class and 2) the injury is within the class of risk THAT THE STATUTE SEEKS TO PROTECT/ PREVENT
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NEGLIGENCE: STANDARD OF CARE OWED
What are exceptions to negligence per se? |
DON"T USE STATUE TO STANDARD OF CARE IF:
1) compliance with statute is more dangerous than violating it 2) compliance would be impossible |
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NEGLIGENCE: STANDARD OF CARE OWED
List special cases |
Children
Professionals owners/possessors of real estate |
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NEGLIGENCE: STANDARD OF CARE OWED
Describe the special cases for children of various ages (under age 4 / btween 4 and 18) |
under age 4: owes no duty to anyone
4-18: owes care of child of similar age experience and intelligence acting under similar circumstances --> subjective test (subjective standard implication) engaging in adult activity: then normal standard of care |
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NEGLIGENCE: STANDARD OF CARE OWED
What is the duty of professionals? |
care of average member of that profession practicing in a similar community
Implication is to compare D to his colleagues. P will educate jury about relevant customary practices via expert witnesses |
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NEGLIGENCE: STANDARD OF CARE OWED
Professionals --- What is the locality rule? |
medical resources may vary--limit who can serve as expert witness
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NEGLIGENCE: STANDARD OF CARE OWED
What is the NEW YORK rule on informed consent for PROFESSIONALS? |
doctor must explain risks of procedure to patients in order for them to makedecision
MUST disclose the common risks No obligation to disclose if: 1) patient declines info 2) patient is incompetent 3) if disclosure would cause a medical problem to the patient b/c of emotional agitation 4) risk is so commonly known that there's no need to disclose it |
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NEGLIGENCE: STANDARD OF CARE OWED
Owners/possessors of real estate-- What are the types of entrant? |
Trespassers
Licensee Invitee |
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NEGLIGENCE: STANDARD OF CARE OWED
What is owed to trespassers? consider both activities on land and dangerous conditions |
ONLY owe a duty to DISCOVERED or ANTICIPATED trespassers
1) activities on land: normal prudence standard 2) dangerous condition: duty owed ONLY IF 1) already known; 2) artificial; 3) highly dangerous condition that's 4) hidden from the trespasser |
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NEGLIGENCE: DUTY OF CARE OWED
What is a licensee and what are they owed? |
A licensee entered land with permission but not to confer economic benefit to the land possessors (e.g. social guest)
1) activities: normal prudence standard 2) dangerous conditoin: duty for ALL ) known and 2) concealed hazards |
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NEGLIGENCE: DUTY OF CARE OWED
What is an invitee and what are they owed? |
Enter land with permission to either confer economic benefit on possessor or on premises open to general public
1) Activities: normal prudence standard 2) dangerous condition: duty for ALL 1) concealed hazards that 2) were known or knowable through a reasonable inspection (aka one undertaken by reasonably prudent person) |
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NEGLIGENCE: DUTY OF CARE OWED
What are exceptions to the duty owed? |
1) Firefighters and cops: can't reover for risk inherent in their jobs
2)child trespassers: for artificial conditions entitled to standard of reasonable care.If not likely kids will trespass then it's reasonable not to do anthing. if we expect children to trespass then we should do things (i.e. attractive nuisance) |
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NEGLIGENCE: DUTY OF CARE OWED
What is a satisfying duty? |
WARN or MAKESAFE
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NEGLIGENCE: DUTY OF CARE OWED
What are NEW YORK abolished categories? |
Normal prudent person standard applies always
CIRCUMSTANCES MATTER: reasonable person makes more effort to protect paying customers>buddies watching TV > trespassers |
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NEGLIGENCE: DUTIES TO ACT
Is there a general duty to act? What about in NEW YORK? |
No general duty to act. BUT:
a) liability: if you do voluntary act must act reasonably under the circumstances b) NY GOOD SAMARITAN LAW: exempts from liability rescuers who are nurses and doctors SO LONG AS not grossly negligent and veterinarians |
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NEGLIGENCE: DUTIES TO ACT
What is the pre-existing relationship exception |
a) ANY standard relationship (employee employer invitee family etc.)
b) OTHERS: courts strain to find relationships |
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NEGLIGENCE: DUTIES TO ACT
What is a causal exception? |
If you caused or put the person in peril
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NEGLIGENCE: NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
What is a breach of standard of care? |
MATT--- this is page 12 of your notes and im not sure what this means
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NEGLIGENCE: NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
What are "PLUS" factors? What's specific to NEW YORK? |
1) near miss case (or as george carlin would say. a near hit [hahahha]): plaintiff in zone of physical dnager from negligence
2) bystander claim: observed negligent injury in real time on a close family member AND WAS in close proximity to the event. In NEW YORK must be so close as to be in the zone of danger AND must be an immediate family member |
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NEGLIGENCE: NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
What constitutes negligent infliction of emotional distress? |
1) breach of standard of care
2) "plus" factors ( near miss case or bystander claim) 3) suffered physical manifestations due to distress |
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NEGLIGENCE: BREACH
How do we identify wrongful conduct and explain why wrongful? |
use our facts
persuade |
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NEGLIGENCE: BREACH
When does Res Ipsa Louqitur occur? |
when P lacks info and can't explain exactly what D did wrong, acts as substitute for these facts
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NEGLIGENCE: BREACH
What are the elements of Res Ipsa Loquitur? |
a) type of accident is one normally associated with negligence
AND b) person sued is normally associated with this negligence |
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NEGLIGENCE: CAUSATION
With FACTUAL CAUSATION, what are three things to consider? List and explain them. |
1) STANDARD BUT-FOR: if he'd been acting properly accident would have been avoided
2)SUBSTANTIAL FACTOR TEST FOR MERGED CAUSES: when two event were both capable of causing the harm, ask was each capable of causing the harm by itself. Each substantial factor is a factual causeof the accident 3) UNASCERTAINABLECAUSES: 2 potential culprits but only one of them did it such that odds are 50/50. SHIFT BURDEN OF PROOF TO Ds |
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NEGLIGENCE: CAUSATION
What is proximate causation? |
Convince us liability is fair unerthes circumstnaces.If harmis such a surprise in occurrence or degree compared to the wrongdoin that'spossibly unfair
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NEGLIGENCE: CAUSATION
Explain the components of the foreseeability test (direct and indirect causes) |
IF HARM IS NOT FORESEEABLE THEN NOT A PROXIMATE CAUSE OF THE DAMAGES
a) DIRECT CAUSE - P suffers harm IMMEDIATELY after the breach. liable for all foreseeable results b) INDIRECT CAUSE: only after something else happens does P suffer the harm. Consists of always forseeable situations and general situations |
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NEGLIGENCE: CAUSATION
Proximate causation -- indirect cause What are ALWAYS forseeable situations |
1) intervening medical malpractice
2) intervening negligent rescue 3)intervening reaction or protection forces 4) subsequent disease or accident |
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NEGLIGENCE: CAUSATION
Proximate causation -- general situations What is a general situation? |
is the type of harm that occurred what we would think of had we just thought about the breach? If not, then not a proximate cause
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NEGLIGENCE: CAUSATION
Proximate causation --- What is the egg-shell skull rule? |
Liable for damages even if unusually severe
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NEGLIGENCE: CAUSATION
Proximate causation ---- What is an unforseeable criminal exception? |
Unforseeable criminal acts or intentional torts are generally considered to be superseding
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NEGLIGENCE: DAMAGES
What is the collateral source rule? |
If ignored then P can recover full amount even if already covered by insurance
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NEGLIGENCE: DAMAGES
What is the collateral source rule IN NEW YORK? |
tort award reduced by money received or will be received from other sources to compensate for same injury. Don't count life insurance benefits social security benefits, etc.
NY FUTURE PAINAND SUFFERING DAMGES > $250k = bring to pv and pay out overmax of 10 years |
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NEGLIGENCE: EQUITABLE REMEDIES
What four factors must you satisfy to obtain a permanent injunction? |
1) NO ADEQUATE REMEDY AT LAW: money won't suffice because a) D has no money; b) object in question is immeasurable; c) D's conduct is ongoing
2) D VIOLATED PROPERTY INTEREST OR OTHER PROTECTABLE RIGHT: lways satsified; bodily integrity is a protectable interest 3) INJUNCTION IS PRACTICABLY ENFORCEABLE BY COURT AND a) prohibitory injunctions; b) mandatory injunctions 4) BALANCE OF HARDSHIPS: benefits to P of granting injunction vs. harm to D if granted |
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NEGLIGENCE: EQUITABLE REMEDIES
What must PRELIMINARY INJUNCTIONS satisfy? |
must satisfy permanent injunction factors PLUS point is to preserve the status quo
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NEGLIGENCE: EQUITABLE REMEDIES
WHAT ARE YOU GOING TO REMEMBER TO SAY ON THE EXAM ABOUT PRELIMINARY INJUNCTIONS?! |
1) likelihood of success on the merits
2) irreparable injury: without an injunction there won't be any point in suing anymore |
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NEGLIGENCE: EQUITABLE REMEDIES
What are defenses against an injunction? |
1) unclean hands
2) laches: unreasonable delay in bringing action AND D has changed position in reliance on P's non-action to its detriment 3) 1st Amendment: no prior restraints so don't give injunction in speech torts |
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NEGLIGENCE: DEFENSES TO NEGLIGENCE
What are the traditional defenses? Is it the default in NY? |
Not available in NY
1) Contributory Negligence 2) Implied Assumption of the risk |
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NEGLIGENCE: DEFENSES TO NEGLIGENCE
Traditional defenses -- what are the three exceptions of contributory negligence? |
1) Protective Statute exception: no defense if negligence via violationof statue designed to protect class of P from their lack of judgment
2) Last Clear Chance Exception: If D had the last ability to avoid the accident yet didn't do so will still be liable 3) Intentional Torts Exception: no defense to intentional torts or wanton and willful conduct |
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NEGLIGENCE: DEFENSES TO NEGLIGENCE
Traditional defenses -- What constitutes implied assumptionofthe risk? |
1) voluntarily proceeded in the fact of a
2) known risk *Knowledge implied if average person would figure it out EXCEPT if no choice ut to proceed or situation involves fraud force or an emergency |
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NEGLIGENCE: DEFENSES TO NEGLIGENCE
What is comparative negligence? IS this the default in NY? |
YES it is the default on the MBE and is the law in NY
1) must show that evidence that P failed to exercise reasonable care for his own safety 2) Impact: recovery reduced basedon assignment of fault 3) IN NEW YORK: if you get hurt while as a result of your own illegal activities involving risk of physical harm ou can't recover |
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NEGLIGENCE: DEFENSES TO NEGLIGENCE
What are the 3 main types of defenses? |
1) Traditional defenses
2) Comparative negligence 3) Modified comparativnegligence |
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NEGLIGENCE: DEFENSES TO NEGLIGENCE
What is modified comparative negligence? |
If P fault <50%, reduce recovery. If 50%, is a complete bar to recovery
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STRICT-LIABILITY: ANIMALS
How does strict liability apply to wild and domesticated animals? |
1) WILD: strict liability ALWAYS
2) DOMESTICATED: only for animals with known vicious propensities |
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STRICT-LIABILITY: ABNORMALLY DANGEROUS ACTIVITY
A.D. activity is always strict-liability IF____? |
a combination of ALL of the following:
1) creates foreseeable risk of serious harm even when reasonable care is taken 2)isn't one of common usage in the community where carried out 3) harm is a result of the dangerous propensity of the activity |
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STRICT-LIABILITY: PRODUCTS
What 4 elements must you prove? |
1) Merchant
2) Defective 3) Unaltered 4) Foreseeable |
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STRICT-LIABILITY: PRODUCTS
D as a merchant excludes and covers what? |
1) EXCLUDES
a. occasional sellers b. service providers who supply products in the course of providing the service 2) COVERS a. commercial lessors b. ALL merchants in distribution chain for the product |
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STRICT-LIABILITY: PRODUCTS
What are possible defects? |
1) Manufacturing defect
a) departs from intendeddesignandis more dangerous than consumers expect 2) Design defect--product could've been built differently. Alternative would have been: a) safer b) economically feasible c) practicable 3) Insufficient warnings |
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STRICT-LIABILITY: PRODUCTS
When saying there's a design defect, what 3 things must you show about the alternative design? |
1) safer than versionactually marketed
2) economically feasible 3) practicable |
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STRICT-LIABILITY: PRODUCTS
What does it mean if there are insufficient warnings? |
If there are residual risks that can't be designed outandthose risks aren'tobvious to users and there aren'tadequate warnings or instructions
Important that the warning must be good and that warnings won't substitute for a physical redesign |
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STRICT-LIABILITY: PRODUCTS
What does it mean if P is making a foreseeable use of the product at the time of injury? |
forseeability rather than intended use
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STRICT-LIABILITY: DEFENSES
What are two defenses? |
1) Comparative jurisdictions = normal rules
2) contributory jurisdictions = no defense UNLESS P knew of danger (assumption of risk) and caused the problem |
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NUISANCE
What is the definition of a nuisance? |
Substantial unreasonable interference with P's ability to enjoy his land. balance the equities to determine if it's unreasonable
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VICARIOUS LIABILITY: EMPLOYERS--EMPLOYEES
When are employers generally liable? |
if torts of employees are committed within teh scope of employment
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VICARIOUS LIABILITY: EMPLOYERS--EMPLOYEES
Are they liable for intentional torts? |
generally not liable because considered outside of scope of emloment.
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VICARIOUS LIABILITY: EMPLOYERS--EMPLOYEES
What are exceptions to intentional torts? |
1) If force is partof job forcewill cause vicairous liability
2) if job routinely causes friction 3) unintentional tort committed in misguided attempt to serve boss' purposes |
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VICARIOUS LIABILITY: INDEPENDENT CONTRACTORS
Is there strict liability? |
NOPES
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VICARIOUS LIABILITY: INDEPENDENT CONTRACTORS
What is the invitee exception? |
the land possessor is vicairously liable if contractor hurts an invitee
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VICARIOUS LIABILITY: CAR OWNERS AND DRIVERS
What is the general rule? |
no liability unless the driver is running errand for car owner (agency!)
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VICARIOUS LIABILITY: CAR OWNERS AND DRIVERS
What doctrine is a part of the general rule? |
Family Car Doctrine
liability for tortuous conduct of family or household members who drive hte car with permission |
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VICARIOUS LIABILITY: CAR OWNERS AND DRIVERS
What is the NEW YORK Permissive Use Doctrine? What are its components and what is an exception? |
vicarious liability whenever driver usescar without owner's permission UNLESS it's an intentional tort
a) PRESUMPTION that all drivershave owner's permission. b) PRESENCE SUFFICIENT: Authorized driver doesn't have to be driving if he was present c) Exception: rental car companiesnot liablefor tortsof their customers |
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VICARIOUS LIABILITY: PARENTS AND CHILDREN
How is it liable in NY compared to other places? |
In general, not liable ever.But IN NEW YORK:liable up to$5000 for property torts committed by child over age 10
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VICARIOUS LIABILITY: CO-DEFENDANTS
How does comparative contribution apply specifically in NEW YORK? |
a) available for even intentional acts
b) If P released a tortfeasor prior to trial for partial satisfactionof the claim then P can sue other joint tortfeasors for the balance. Also judgment in favor of P is reduced by greater of the amount he received from the released party or released party's share of the fault c) if non-economic losses then would be liable for the whole thing |
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VICARIOUS LIABILITY: CO-DEFENDANTS
What are indemnification exceptions? |
Full reimbursement
1) party held vicariously liable can be indemnified by active tortfeasor 2) non-manufacturer held strictly liablein products suit can get indemnity from manufacturer |
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VICARIOUS LIABILITY: LOSS OF CONSORTIUM
For what 3 reasons would an uninjured spouse have cause of action against tortfeasor? |
1) Loss of services
2) loss of Sex 3) Loss of society (companionship) |
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VICARIOUS LIABILITY: NEW YORK INTRA-FAMILY
Describe. |
Parent owes no duty to a child to supervise day-to-day activities aka can't sue for negligent supervision
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VICARIOUS LIABILITY: NEW YORK SURVIVAL AND WRONGFUL DEATH
When can wrongful death be brought? |
within2 years fromdeath
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VICARIOUS LIABILITY: NEW YORK SURVIVAL AND WRONGFUL DEATH
Not sure what question to ask to get you talking about this section on part of estate (last page) |
part of estate if injury caused death. Damages limited to those accruing before death. Death itself is recovered via wrongful death
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